Recover password

Court: Immigrant can withdraw guilty plea

Copyright © 2014 Albuquerque Journal

A Mexican immigrant who wasn’t told how his guilty plea to minor drug charges could affect his ability to live in the United States will have a chance to withdraw his plea, the New Mexico Supreme Court ruled Thursday.

The court said a rule it established in a 2004 opinion, which said a criminal defense attorney representing a noncitizen must tell the client about the specific outcome of a guilty plea, applies retroactively to 1990. That year, the state Supreme Court ordered lower courts not to take guilty pleas unless certain requirements were met, including an affidavit showing the accused understood that his or her immigration status might be affected.

Absent proof of such advice, Justice Edward Chávez wrote for a unanimous court, the defendant might claim ineffective assistance of counsel.


Continue reading

“He’s a very happy guy,” attorney Eric Hannum said of the reaction of his client, Martin Ramirez, to the ruling. Ramirez was notified by Homeland Security in 2009 about possible deportation, after the agency rejected his requests for a waiver to stay in the United States.

Ramirez, 51, of Sinaloa, Mexico, has been in the United States since he was 17. He married a U.S. citizen and applied for permanent residency, but had not completed the paperwork when she died. He now has stepchildren and grandchildren here.

His current predicament resulted from a 1997 arrest in a Barelas park with less than an ounce of marijuana and paraphernalia.

Still in a jail jumpsuit when he appeared in Metropolitan Court the next day, he had a five-minute meeting with his appointed attorney, who advised him to plead guilty to the misdemeanors and he would be released.

Any record of the proceedings is long gone.

In theory, if his plea is withdrawn, prosecutors could still try to convict him on the charges. But Hannum says he doubts the state would be able proceed on a prosecution at this point.

District Judge Alan Malott, who handled the civil proceeding when Ramirez asked to have the pleas set aside, said he was deeply troubled that misdemeanors could lead to Ramirez’s deportation. He nevertheless found the Supreme Court’s 2004 ruling about advising clients of immigration fallout was not retroactive.

A Court of Appeals opinion by Judge Roderick Kennedy reversed Malott, and the state appealed that ruling.


Continue reading

The Attorney General’s office, arguing against using the rule retroactively, warned about a potential flood of efforts to withdraw pleas.

It also urged the high court to follow the ruling of the U.S. Supreme Court in a parallel case, Chaidez, decided in 2013. In that case, a woman who had been a lawful resident since 1977 found that a federal mail fraud conviction involving $2,000 meant she could be deported.

The decision means federal defendants cannot make retroactive claims about ineffective assistance of counsel even if they weren’t being told of immigration consequences of a plea.

The New Mexico opinion by Chávez might have gone that route if this state hadn’t begun requiring disclosure of a guilty plea’s effect on immigration status 24 years ago.

“We hold today that Ramirez has a viable claim for withdrawal of his 1997 guilty pleas based on ineffective assistance of counsel,” Chavez wrote.